Conneaut v. Wick

2024 Ohio 4452, 249 N.E.3d 1286

• Court: Ohio Court of Appeals
• Decided: September 9, 2024
• Docket: 2024-A-0001
• Status: Published

Opinion

[Cite as Conneaut v. Wick, 2024-Ohio-4452.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

CITY OF CONNEAUT, CASE NO. 2024-A-0001

Plaintiff-Appellee, Criminal Appeal from the - vs - Conneaut Municipal Court

FRANCIS J. WICK, Trial Court No. 2023 CRB 00309 Defendant-Appellant.

OPINION

Decided: September 9, 2024 Judgment: Affirmed

John D. Lewis, Law Director, City of Conneaut, 294 Main Street, Conneaut, OH 44030 (For Plaintiff-Appellee).

Margaret Brunarski, Ashtabula County Public Defender, and Michael J. Ledenko, Assistant Public Defender, 22 East Jefferson Street, Jefferson, OH 44047 (For Defendant-Appellant).

ROBERT J. PATTON, J.

{¶1} Appellant, Francis J. Wick (“Wick”), appeals the decision of the Conneaut

Municipal Court, sentencing him to five years of unsupervised community control, a fine

of $150, payment of court costs, and 30 days of suspended jail time on the condition that

he complete an anger management course and remove “defamatory language” from the

back of his vehicle. Appellant asserts that the condition of community control requiring

that he remove defamatory language from the back of his vehicle is unconstitutional. For

the following reasons, we affirm. {¶2} This case arises from events that occurred on October 27, 2023. Wick was

on Conneaut High School property using vulgar and offensive language in the presence

of High School staff members and students. Wick admitted to the trial court that he used

profanity towards staff and officials that day. Wick was on the property because he had

dropped off his daughter but was later told to return and pick her up. Wick was angry that

his daughter had been suspended from school, and there was some confusion about

when she was able to return. After shouting profanities at teachers and officials, Wick

squealed his tires and left the High School. When Wick arrived at his nearby home,

officers were there waiting for him. Wick continued to shout profanities at officers out the

windows of his home. On October 30, 2023, Wick again was at Conneaut High School,

where Officer Rose was also present, and he shouted profanity at faculty and Officer rose,

and again drove off.1

{¶3} Officer Timothy Rose (“Officer Rose”) was present during the October 27,

2023, incident. During Sentencing, Officer Rose advised the trial court that sometime after

the incident at the High School and Wick’s home, he discovered the words “F Officer

Rose” written in metal paint pen on the back of Wick’s vehicle. Wick stated at sentencing

that his daughter had written the statement on a 1996 Ford Explorer that he owned.

{¶4} Wick was charged with Aggravated Disorderly Conduct (Case No.

23CRB00309-A), Disorderly Conduct (Case Do. 23CRB00310-A), and Reckless

Operation of a Motor Vehicle (Case No. 23TRD00786) under the City of Conneaut’s

ordinances. Wick entered a plea of no contest to the Aggravated Disorderly Conduct and

1. The incident occurring on October 30, 2023, was the basis of the second disorderly conduct charge (Case No. 23CRB00310-A). This appeal concerns the first, aggravated disorderly conduct charge occurring on October 27, 2023 (Case No. 23CRB00309-A). 2

Case No. 2024-A-0001 Disorderly Conduct charges, and Reckless Operation count was dismissed. On the

Disorderly Conduct charge, the trial court fined Wick $100. On the Aggravated Disorderly

Conduct count, the trial court sentenced Wick to thirty days in jail, suspended, five years

of unsupervised community control, and a $150 fine. The trial court further added the

conditions that Wick attend anger management treatment and remove the “defamatory”

statement regarding Officer Rose from his vehicle. Wick’s appeal to this Court only

pertains to the sentence imposed for the Aggravated Disorderly Conduct charge.

{¶5} Wick’s sole assignment of error states: “The trial court committed prejudicial

error by incorrectly determining the content of a written message to be defamatory and

ordering Wick to delete that message as a condition of suspended incarceration.”

Defamation

{¶6} As an initial matter, this Court looks to the statement giving rise to Wick’s

constitutionality-based assignment of error. Wick contends that the trial court incorrectly

determined the language written on the back of Wick’s vehicle to be defamatory.

However, the trial court did not make such a finding. During sentencing, the trial court

stated, “I order that you remove from your 1996 Ford Explorer the defamatory language

against Officer Rose * * *. I’m going to give you * * * two weeks to do that.”

{¶7} The Merriam-Webster dictionary defines defamation as “the act of

communicating false statements about a person that injure[s] the reputation of that

person.”2 The common meaning of the word “defamatory” is generally understood, in its

normative usage, as language that is negative in nature directed at a specific person that

2. Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/defamatory (accessed June 18, 2024). 3

Case No. 2024-A-0001 diminishes their reputation. It appears from the sentencing transcript that the trial court

used the word in a descriptive sense simply to characterize the statement regarding

Officer Rose, rather than making a legal conclusion as to the nature of the statement. The

trial court could have supplanted the word “defamatory” with any number of alternative

words without any bearing on Wick’s sentence. Accordingly, we conclude that Wick’s

assignment of error is predicated on an inaccurate assertion that the trial court determined

that the statement on his Explorer was defamatory in nature when a plain reading of the

record demonstrates otherwise.

Constitutionality of Wick’s Probation Condition

{¶8} A further review of the record reveals that Wick did not object to the

constitutionality of his probation conditions. His failure to do so below waived all but plain

error review on appeal. Crim.R. 52(B).

{¶9} This Court has previously addressed instances where a criminal defendant

raises a constitutional objection to a sentence for the first time on appeal. Specifically,

this Court has held, “[e]ven where waiver is clear, constitutional challenges may be heard

for the first time on appeal if the court exercises its discretion to do so ‘in specific cases

of plain error where the rights and interests involved may warrant it.’” State v. George,

2021-Ohio-476, ¶ 14, quoting In re M.D., 38 Ohi St.3d 149 (1988).

{¶10} “Courts are cautioned ‘to notice plain error “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” ’ ” State

v. Walker, 2023-Ohio-2725, ¶ 39 (11th Dist.) quoting State v. Barnes, 94 Ohio St.3d 21,

27, 27. “To establish plain error, a defendant must show an error that constitutes an

obvious defect in the trial proceedings and demonstrate that the error affected the

Case No. 2024-A-0001 outcome of the trial.” State v. Little, 2023-Ohio-4098, ¶ 77 (11th Dist.), citing State v.

Rogers, 2015-Ohio-2459, ¶ 22. Therefore, absent a manifest miscarriage of justice, an

appellate court may not consider a constitutional issue presented for the first time on

appeal.

{¶11} It appears that a challenge to the constitutionality of a condition of

community control requiring an appellant to remove language from his vehicle or other

property under his or her control is a case of first impression in Ohio. However, this case

resembles another case of first impression decided by this Court, George, 2021-Ohio-

476. In George, this Court declined to review a constitutional challenge to a community

control condition, under a plain error analysis, requiring the defendant to write an apology

letter to the victim.

{¶12} The dissent takes issue with our reliance on George to decline review as

“the condition we consider in this case is suppression of speech made by a third party

which is untethered from any criminal act.” The dissent’s analysis actually supports our

conclusion to decline review as it identifies a question of standing regarding the source

of the speech at issue. The record reflects that Wick made an unsworn statement at

sentencing that Wick’s daughter, a non-party, wrote the statement on his vehicle.

Appellant’s role appears to be limited to owning the vehicle upon which the written

statement was made.

{¶13} Wick did not object to the constitutionality of his sentence in the trial court.

Wick’s claim does not rise to the level of constitutional plain error that warrants review as

the trial court’s sentence did not result in a manifest miscarriage of justice. Walker, supra.

This Court does not condone such language directed at police officers. However, the

Case No. 2024-A-0001 doctrine of plain error coupled with the question of standing requires us to decline

reviewing the merits as framed by appellant. Accordingly, we find Wick’s constitutional

error to be without merit as his objection in this regard was not preserved for appeal and

appellate review is not required to prevent a manifest miscarriage of justice.

{¶14} Wick’s sole assignment of error is without merit.

{¶15} For the foregoing reasons, this appeal is affirmed.

MARY JANE TRAPP, J., concurs,

JOHN J. EKLUND, J., dissents with a Dissenting Opinion.

{¶16} I respectfully dissent.

{¶17} Appellant behaved badly at his daughter’s school. So badly that it prompted

local law enforcement (one of whom was present at the school and observed the

misbehavior) to press a complaint charging him with assorted violations of Conneaut

Municipal Ordinances. He pled no contest to two of them.

{¶18} There is no question that, after his offensive conduct, his daughter wrote on

the back of Appellant’s car an unbecoming, disrespectful comment about the law

enforcement witness to his misbehavior. Sometime later, the complaining law

enforcement witness saw it. At sentencing, the trial court commanded Appellant to

Case No. 2024-A-0001 remove the offending language from the car as a condition of the community control to

which it sentenced Appellant. He appeals, claiming that the trial court erred in doing so.

{¶19} This case presents a serious question, to wit: what, if any, are the limits on

obligations a court may impose on a defendant sentenced to community control?

Failure to Object:

{¶20} Typically, a failure to object to a sentencing error at the trial court waives all

but plain error. State v. Awan, 22 Ohio St.3d 120, (1986); State v. Devai, 2013-Ohio-

5264, ¶ 16 (11th Dist.). However, even where the waiver is clear, the court may exercise

its discretion to hear constitutional challenges for the first time on appeal “in specific cases

of plain error or where the rights and interests involved may warrant it.” In re M.D., 38

Ohio St.3d 149 (1988), syllabus; State v. Weaver, 2014-Ohio-1371, ¶ 12 (11th Dist.).

{¶21} I believe this case warrants the exercise of our discretion to review this error

despite Appellant’s failure to object at the trial court.

{¶22} The majority likens this case to State v. George, 2021-Ohio-476 (11th Dist.)

to justify similarly declining to review the issue before us. However, that comparison is

inapt for two reasons. First, in George, the appellant failed to object to the trial court’s

sentence requiring him to write an apology letter as a condition of his community control.

However, the community control condition before us is not like ordering someone (as a

condition of community control) to apologize to a victim for a criminal act. In contrast, the

condition we consider in this case is a suppression of speech made by a third party and

which is untethered from any criminal act.

{¶23} Second, the defendant in George argued the apology requirement was

unconstitutional, however, he did not cite “any authority in support of this proposition.” Id.

Case No. 2024-A-0001 at ¶ 16. We cited App.R.16(A)(7), noting that an appellant’s brief failed to “include an

argument containing the contentions of the appellant with respect to each assignment of

error . . . with citations to the authorities . . . on which appellant relies.” It was only

because of this procedural failure, and because the issue was one of first impression in

Ohio, that we declined to exercise our discretion to address the issue on appeal. Id. at ¶

17. This Appellant has supplied ample authority on which to consider his arguments.

Review of Community Control Conditions:

{¶24} While a trial court has discretion “in imposing conditions” of community

control, that discretion “is not limitless.” State v. Jones, 49 Ohio St.3d 51 (1990).

Community control sanctions “cannot be overly broad so as to unnecessarily impinge

upon the probationer's liberty.” Id. The standard of review for a trial court’s imposition of

community control sanctions is for an abuse of discretion. State v. Talty, 2004-Ohio-

4888, ¶ 10. The community control sanction must be reasonably related to the

probationary goals of doing justice, rehabilitating the offender, and insuring good

behavior. Id. at ¶ 12.

{¶25} “When sentencing a misdemeanor offender to community control, a trial

court may impose residential, nonresidential, and financial sanctions and any other

conditions the trial court considers appropriate. R.C. 2929.25(A)(1)(a) and (b).” State v.

Bourne, 2023-Ohio-2832, ¶ 17 (11th Dist.). R.C. 2929.27 sets forth specific

nonresidential sanctions a trial court may impose, including “any other sanction that is

intended to discourage the offender or other persons from committing a similar offense if

the sanction is reasonably related to the overriding purposes and principles of

misdemeanor sentencing.” R.C. 2929.27(C).

Case No. 2024-A-0001 {¶26} To determine whether a community control sanction is an abuse of

discretion, a reviewing court must consider whether the sanction: “(1) is reasonably

related to rehabilitating the offender, (2) has some relationship to the crime of which the

offender was convicted, and (3) relates to conduct which is criminal or reasonably related

to future criminality and serves the statutory ends of probation.” Jones at 53. “All three

prongs must be satisfied for a reviewing court to find that the trial court did not abuse its

discretion.” Bourne at ¶ 20.

{¶27} Although the narrow issue before us appears to be one of first impression,

Ohio case law demonstrates that the above standard is appropriate to assess whether a

community control sanction implicating a fundamental right is a reasonable sanction. See

Jones at 51 (whether the trial court abused its discretion by “imposing as a condition of

probation that this defendant ‘have no association or communication, direct or indirect,

with anyone under the age of eighteen (18) years not a member of his immediate

family.’”); Talty, 2004-Ohio-4888, ¶ 18-25 (whether the trial court can lawfully order that,

as a condition community control, “the defendant may not impregnate a woman while

under supervision.”).

{¶28} Applying the Jones three-prong test to the matter before us, I would find

that the trial court did abuse its discretion by ordering appellant to remove the message

from his car.

{¶29} First, I fail to see how the community control condition could be reasonably

related to rehabilitating Appellant because Appellant was not the one who put the

message on the car. The condition has no redemptive value. The question of whether

appellant should have such a message on his car is a separate question from whether

Case No. 2024-A-0001 the court should order its removal. The best that may be said for the condition is that

Appellant might learn not to let his daughter write such things on his car. Or, it might

teach Appellant to raise his children to respect police officers. But a failure to respect law

enforcement (however odious that may be) is not criminal. Appellant’s rehabilitation does

not require that he respect Officer Rose. In the end, the goal of a community control

sanction cannot be to ensure that defendants, like Winston from George Orwell’s 1984,

“must love Big Brother.”3

{¶30} Second, the condition is not related to the crime for which Appellant was

convicted. Appellant was convicted for using “vulgar and offensive language in the

presence of students” and “staff members” at the Conneaut High School. The message

“F Officer Rose” is not vulgar or profane on its face. The condition can only be said to be

related to the crime insofar as Appellant’s daughter wrote the message, but we do not

even know why she did so (although the reference to it in the record seems to indicate it

was related to Officer Rose arresting Appellant). I do not believe such a tenuous

relationship satisfies Jones’ second prong.

{¶31} Third, the condition does not relate to conduct that is criminal, or reasonably

related to Appellant’s future criminality. Again, he did not write it, and, as the majority

explains, the message is not defamatory in a legal sense. Its mere presence on the car

certainly does not rise to the level of disorderly conduct or any other criminal violation.

Apparently, it bothers Officer Rose (apparently not enough to have informed the

prosecutor or the court of it until sentencing). It bothers me, too. But, the expression of

3. George Orwell, 1984, (New York: Harper Collins, 1977), 388.

Case No. 2024-A-0001 that opinion – disrespectful as it may be – cannot be said to be reasonably related to

Appellant’s future criminality.

{¶32} Because the community control sanction fails to satisfy each of the three

prongs of the Jones test, I would hold that the trial court abused its discretion by imposing

the condition to remove the message “F Officer Rose” from Appellant’s car.

Case No. 2024-A-0001